BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

NICK F. BURGRABE,

Attorney-Respondent, 

No.  6181196.

 

Commission No.  07 SH 9

FILED -  January 9, 2008

AMENDED COMPLAINT

Mary Robinson, Administrator of the Attorney Registration and Disciplinary Commission by her attorney, Gary S. Rapaport, pursuant to Supreme Court Rules 753(b) and 761(c), complains of Respondent, Nick F. Burgrabe, who was licensed to practice law in Illinois on November 5, 1981, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or which brings the courts or the legal profession into disrepute:

Count I
(Criminal conduct - driving under the influence of alcohol)

1. On the night of October 12 and the early morning of October 13, 2001, Respondent consumed a number of beers at a tavern and while driving his car. Witnesses observed him driving erratically. Respondent drove to a street in or near Gridley, Illinois, where he stopped on the roadway and fell asleep in his car with the engine running and headlights on.

2. At approximately 12:14 a.m. on October 13, 2001, Gridley Chief of Police Robert N. Downen found Respondent asleep in his running car and observed empty beer bottles in the car. Respondent refused to perform field sobriety tests and refused to submit to blood alcohol testing. Respondent told Chief Downen that he was an attorney and his father was a master sergeant for the Illinois State Police. Respondent was arrested on charges of driving while under the influence of alcohol, in violation of 625 ILCS 5/11-501(a)(2), a Class A misdemeanor, and illegal transportation of open containers of alcohol, in violation of 625 ILCS 5/11-502(a).

3. On October 22, 2001, the McLean County State's Attorney's office filed the foregoing charges in a matter docketed as People v. Nick F. Burgrabe, No. 01 DT 619, in the Circuit Court for McLean County, Illinois.

4. On November 14, 2001, Respondent pled guilty to the DUI charge and was placed on supervision for a period of 24 months, assessed fines and costs in the amount of $872.00, and ordered to undergo an alcohol evaluation. The charge of illegal transportation was dismissed.

5. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. committing a criminal act, driving while under the influence of alcohol, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; and

  2. conduct which tends to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Count II
(Criminal conduct - driving under the influence of alcohol)

1. On the night of December 16 and the early morning of December 17, 2005, Respondent drove his car to at least two different taverns where he consumed a number of beers. Witnesses observed him driving erratically and reported him to the police.

2. At approximately 12:55 a.m. on December 17, 2005, officers of the Macon County Sheriff's Department stopped Respondent in his car in Forsyth, Illinois. Officers observed that Respondent smelled strongly of alcohol and was unsteady on his feet. He refused field sobriety tests. Respondent told the officers that he was an attorney and that the field tests that they offered were not "suitable" or "accurate." Respondent claimed to agree to a portable breath test, but he refused to blow, or he was incapable of blowing, into the testing device. The officers arrested Respondent on charges of driving while under the influence of alcohol, in violation of 625 ILCS 5/11-501(a)(3), and improper lane usage, in violation of 625 ILCS 5/11-709.

3. On December 20, 2005, the State's Attorney filed the foregoing charges in matters docketed as People v. Nick F. Burgrabe, No. 05 DT 326 and No. 05 TR 20588, in the Circuit Court for Macon County, Illinois.

4. On October 16, 2006, the State's Attorney amended the DUI charge in No. 05 DT 326 to reckless driving, in violation of 625 ILCS 11/5-503(a)(1), a Class A misdemeanor. Respondent pled guilty to the amended charge and was sentenced to a fine of $501.00 plus costs. The charge of improper lane usage in No. 05 TR 20588 was dismissed.

5. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. committing a criminal act, driving while under the influence of alcohol, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; and

  2. conduct which tends to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Count III
(Criminal conduct - eavesdropping/secretly making audiovisual recordings of sexual activity
with women
)

1. Between approximately 1991 and 1997, on at least five separate occasions, Respondent made audiovisual tape recordings of his sexual activity with women in the bedroom of his home in Lincoln, Illinois. Respondent taped himself and a different woman on each occasion. At least three of the women were Respondent's previous clients in dissolution of marriage matters. One of the women was Respondent's secretary in his law office.

2. On each of those occasions, Respondent activated the video camera and made the audiovisual tape secretly from, and without the knowledge or consent of, his sexual partner. Respondent positioned the video camera in a closet so that his partner would not observe it.

3. On each of those occasions, the recording that Respondent made included audio as well as video.

4. On each of those occasions, Respondent knowingly and intentionally used the video camera for the purpose of recording all or parts of his conversations with his sexual partner, as well as for the purpose of making a visual recording.

5. Between 1991 and 1997, 720 ILCS 5/14-2(a) defined the offense of eavesdropping, in pertinent part, as knowingly and intentionally using an eavesdropping device for the purpose of recording all or any part of any conversation without the consent of all parties to the conversation. The statute defined an eavesdropping device as any device capable of being used to record oral conversations, among other things. 720 ILCS 5/14-1(a). Eavesdropping was a Class 4 felony.

6. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. committing a criminal act, eavesdropping, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;

  2. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; and

  3. conduct which tends to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Count IV
(Overreaching the attorney-client relationship)

1. On July 24, 1996, Shannon VanBergen ("Shannon") filed a petition for the dissolution of her marriage. The matter was docketed as Shannon L. Prather, Petitioner, v. R. Kris Prather, Respondent, No. 96 D 117, in the Circuit Court for Logan County, Illinois. Attorney Barbara R. Van Tine ("Van Tine") represented Shannon.

2. On December 12, 1996, the court entered a judgment of dissolution of marriage in No. 96 D 117. The parties had one child, Austin, and issues of visitation and child support remained to be resolved.

3. On August 13, 1997, the court allowed Van Tine to withdraw from Shannon's representation. In or about March, 1998, Respondent agreed to represent Shannon. They agreed upon an hourly rate of compensation, and Shannon paid $1,000.00 to Respondent in advance. On March 10, 1998, Respondent filed an appearance on Shannon's behalf in No. 96 D 117.

4. Through August, 1999, Respondent continued to represent Shannon.

5. On a Thursday evening in August, 1999, Respondent telephoned Shannon at her home. In the conversation, Respondent told Shannon that he called to "see how you are doing," then he asked if she was dating anyone. Shannon asked Respondent why he wanted to know that. Respondent told her, "I cannot get you out of my mind," "you are all I think about," and "I have to see you." He asked her to have dinner with him the following night. Shannon replied no. Respondent told Shannon not to decide so quickly. He invited her to bring her son on their first date. Respondent asked her to "think about it" and call him later. Shannon did not return the call.

6. In September, 1999, Shannon disclosed to Respondent that she had become engaged to be married to David VanBergen. She asked Respondent whether, in view of that circumstance, he would have a problem in continuing to represent her. Respondent answered that he would not have a problem.

7. In or about October, 1999, Shannon ceased utilizing Respondent's services. Shannon, her ex-husband and his attorney resolved the matters that were pending in No. 96 D 117 by agreement. The court entered a supplemental judgment of dissolution of marriage on February 29, 2000.

8. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. overreaching the attorney-client relationship; and

  2. conduct which tends to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the hearing board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Gary S. Rapaport, Senior Counsel
Attorney Registration and
Disciplinary Commission
One North Old Capitol Plaza, Suite 333
Springfield, Illinois 62701
Telephone: (217) 522-6838
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Gary S. Rapaport
Counsel for the Administrator